Office of the Attorney General
State of Texas

Re: Whether title VI of the federal Civil
Rights Act of 1964 was enacted to prohibit
racial discrimination in federally funded
programs and related questions (RQ-778)

Dear Senator Ellis:

You ask a series of questions about title VI of the federal Civil Rights Act of
1964 (the "act"), 42 U.S.C. §§ 2000d - 2000d-7 ("title VI"). We note that title VI was
amended in 1988 by the Civil Rights Restoration Act of 1987. Except where noted
otherwise, all references are to title VI as amended.

First, you ask whether title VI of the act was enacted to prohibit racial
discrimination in federally funded programs. Section 601 of the act, 42 U.S.C. § 2000d,
provides as follows:

No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d. Title VI was enacted by Congress as part of the Civil Rights Act of
1964, the purpose of which was to eliminate various forms of discrimination against
minority groups, particularly African Americans. See H.R. Rep. 914, 88th Cong., 2d
Sess., reprinted in 1964 U.S.C.C.A.N. 2391, 2393. The House Committee Report states
that title VI

declares it to be the policy of the United States that discrimination
on the ground of race, color, or national origin shall not occur in
connection with programs and activities receiving Federal financial
assistance and authorizes and directs the appropriate Federal depart-
ments and agencies to take action to carry out this policy. . . .

1964 U.S.C.C.A.N. at 2400.

Next you ask whether "state agencies, local government entities, educational
institutions, private for profit and non-profit corporations [are] recipients" under the act.
The act does not define the term "recipients." In 1988, however, Congress amended the
act to clarify the meaning of the terms "program or activity" and "program" as they are
used in title VI. See, e.g., 42 U.S.C. §§ 2000d, 2000d-1. Newly-added section 606 of
the act, 42 U.S.C § 2000d-4a, provides as follows:

For purposes of this subchapter, the term "program or activity"
and the term "program" mean all of the operations of--

(1)(A) a department, agency, special purpose district, or
other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that
distributes such assistance and each such department or agency (and
each other State or local government entity) to which the assistance
is extended, in the case of assistance to a State or local government;

(2)(A) a college, university, or other postsecondary
institution, or a public system of higher education; or

(B) a local educational agency (as defined in section
198(a)(10) of the Elementary and Secondary Education Act of
1965), system of vocational education, or other school system;

(3)(A) an entire corporation, partnership, or other private
organization, or an entire sole proprietorship--

(i) if assistance is extended to such corporation,
partnership, private organization, or sole proprietorship as a whole;
or

(ii) which is principally engaged in the business of
providing education, health care, housing, social services, or parks
and recreation; or

(B) the entire plant or other comparable, geographically
separate facility to which Federal financial assistance is extended, in
the case of any other corporation, partnership, private organization,
or sole proprietorship; or

(4) any other entity which is established by two or more of
the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance.

42 U.S.C § 2000d-4a. The purpose of this amendment to title VI was to overturn United
States Supreme Court cases that had interpreted the terms "program or activity" or
"program" narrowly. See S. Rep. No. 64, 100th Cong., reprinted in 1988 U.S.C.C.A.N.
3, 5-18; see also Grove City College v. Bell, 465 U.S. 555 (1984); Consolidated Rail
Corp. v. Darrone, 465 U.S. 624 (1984). As a result of the amendment, it is now clear
that title VI applies to all entities, including state agencies, local government entities,
educational institutions, and private for-profit and nonprofit corporations, that receive
federal financial assistance.

You also ask whether "federal funding [can] be terminated or withheld for
noncompliance" with title VI of the act and the Civil Rights Restoration Act of 1987.
Section 602 of the act, 42 U.S.C. § 2000d-1, provides in pertinent part:

Each federal department and agency which is empowered to
extend Federal financial assistance to any program or activity, by
way of grant, loan, or contract other than a contract of insurance or
guaranty, is authorized and directed to effectuate the provisions of
section 2000d of this title with respect to such program or activity
by issuing rules, regulations, or orders of general applicability
which shall be consistent with achievement of the objectives of the
statute authorizing the financial assistance in connection with which
the action is taken. . . . . Compliance with any requirement adopted
pursuant to this section may be effected (1) by the termination of or
refusal to grant or to continue assistance under such program or
activity to any recipient as to whom there has been an express
finding on the record, after opportunity for hearing, of a failure to
comply with such requirement, but such termination or refusal shall
be limited to the particular political entity, or part thereof, in which
such noncompliance has been so found, or (2) by any other means
authorized by law: Provided, however, That no such action shall be
taken until the department or agency concerned has advised the
appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured
by voluntary means. . . .

42 U.S.C. § 2000d-1. This provision clearly permits the termination or withholding of
federal funding of a "program or activity" for failure to comply with agency rules
implementing title VI. Funding may not be terminated or withheld, however, unless
"there has been an express finding on the record, after opportunity for hearing, of a
failure to comply with" the applicable federal regulations. Id. Furthermore, a federal
agency may not terminate or withhold funding unless it has first "advised the appropriate
person or persons of the failure to comply with the requirement and has determined that
compliance cannot be secured by voluntary means." Id.

In a related question, you ask whether "federally funded recipients [are] required
to monitor the programs and activities of their sub-recipients." Section 602, 42 U.S.C.
§ 2000d-1, quoted above, requires federal agencies which provide federal financial
assistance to any program or activity to promulgate regulations implementing title VI.
Thus, such a federal agency is generally required to monitor the programs and activities
of the recipients of agency funding to assure that they comply with title VI. Agency
regulations may in turn require federally funded recipients to monitor the programs and
activities of their sub-recipients. Certain agency regulations, for example, require sub-
recipients to submit compliance reports to the primary recipient. See, e.g., 24 C.F.R.
§ 1.6(b) (Department of Housing and Urban Development); 28 C.F.R. § 42.106(b)
(Department of Justice ); 29 C.F.R. § 31.5(b) (Department of Labor); 43 C.F.R. § 17.5(b)
(Department of Interior); 45 C.F.R. § 80.6(b) (Department of Health and Human
Services); 49 C.F.R. § 21.9(b) (Department of Transportation). Thus, whether a
particular recipient is required to monitor the programs and activities of its sub-recipients
will depend upon the applicable federal regulations.

You also ask whether title VI of the act and the Civil Rights Restoration Act of
1987 "affect state and local government boards, commissions, and authorities that
formulate public policy concerning the expenditure of federal funds." Finally, in a
related question, you ask whether "the minority community and/or its representatives
[can] be denied the right to participate in the planning and development of public policy
relating to federally funded programs." Various agencies which administer federal
funding have promulgated regulations pursuant to section 602 of the act which prohibit a
recipient under a federally funded program from denying a person the opportunity to
participate as a member of a planning or advisory body which is an integral part of the
program on the ground of race, color or national origin. See, e.g., 24 C.F.R. § 1.4(b)(vii)
(Department of Housing and Urban Development); 28 C.F.R. § 42.104(b)(vii)
(Department of Justice); 29 C.F.R. § 31.3(b)(vii) (Department of Labor); 43 C.F.R.
§ 17.3(b)(vii) (Department of Interior); 45 C.F.R. § 80.3(b)(1)(vii) (Department of
Health and Human Services); 49 C.F.R. § 21.5(b)(1)(vii) (Department of
Transportation). Under these regulations, it is impermissible to exclude anyone from
participating in the planning and development of public policy relating to federally
funded programs for discriminatory reasons.

SUMMARY

Title VI of the federal Civil Rights Act of 1964, 42 U.S.C.
§§ 2000d - 2000d-7, was enacted to prohibit racial discrimination in
federally funded programs. Title VI applies to any "program or
activity," as defined by 42 U.S.C. § 2000d-4a, that receives federal
financial assistance. Title VI permits the termination or withholding
of federal funding of a "program or activity" for failure to comply
with agency rules implementing title VI under certain conditions.
See 42 U.S.C. § 2000d-1.

Whether a particular recipient of federal funding is required to
monitor the programs and activities of its sub-recipients will depend
upon the applicable federal regulations. Under various federal
regulations, it is impermissible for a "program or activity" to
exclude anyone from participating in the planning and development
of public policy relating to federally funded programs or activities
for discriminatory reasons.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes

1. We answer your questions in a slightly different order than you have posed them.

2. Title VI does not apply to "ultimate beneficiaries" of federal financial assistance, such as
farmers and social security recipients, who do not administer federally assisted programs. See Pub. L.
No. 100-259, § 7, 102 Stat. 31 (1988). Title VI does not authorize regulation with respect to employment
practices "except where a primary objective of the Federal financial assistance is to provide
employment." 42 U.S.C § 2000d-3; see also id. § 2000d-4 (application of title VI to contract of
insurance or guaranty).